As Americans, we feel comfortable saying whatever we want about public officials and celebrities on our blogs and websites. We’ve got the First Amendment behind us. Unfortunately, the First Amendment doesn’t stretch to cover everywhere our Internet musings may go. Forum shopping has taken a new turn — libel tourism – in which defamation plaintiffs seek a forum that will provide the least protection for statements.
As authoritatively construed by the U.S. Supreme Court, the First Amendment provides significant protection to publishers of even false and defamatory statements. Under New York Times Co. v Sullivan (1964) 376 US 254, 11 L Ed 2d 686, 84 S Ct 710, if a statement relates to a public official or figure or relates to a matter of public concern, a defendant in a defamation action may assert that his or her statement is protected by the constitutional privilege to publish without malice. The plaintiff will thereafter be required to proffer evidence sufficient to meet the heightened malice requirements.
This is definitely not the law in the United Kingdom. As discussed on Law.com, the U.K. has a “very watered-down public figure exception,” and “the defendant is still basically guilty until proven innocent.” Although they are trying to move away from being “the libel magnet of the world,” the Law.com article explains that
libel tourism…[is] alive and well across the pond.
Even though U.S. courts often refuse to enforce British libel judgments, you still have to deal with a costly defense and the possibility of foregoing any future visits to see Big Ben if you lose and want to avoid enforcement.
France seems to be joining its neighbor, and even upping the ante. The Law.com article explains that, in France, “you could be exposed to a `criminal’ libel prosecution…over a book or website you published abroad about someone whom you have now offended.”
This could make France very attractive for libel tourism, but the French courts seem to be on top of it — in a recent case, a book author offended by a negative online review sought redress in France and her case was thrown out for “forum shopping.”
All this reminds us of the global environment in which we now function. When you publish on the Internet, don’t count on the cloak of First Amendment protection.
For complete coverage of defamation and First Amendment protections, go to CEB’s California Business Litigation, chap 11. On First Amendment issues as they relate to the Internet, check out CEB’s Internet Law and Practice in California, chap 20.
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